In re Szymkowicz

District of Columbia Court of Appeals
2015 WL 5474263, 124 A.3d 1078 (2015)

ELI5:

Sections

Rule of Law:

Attorneys must obtain informed consent for joint representation if an objective observer would perceive a risk of adverse interests, particularly when representing a client with diminished capacity alongside a family member who stands to benefit from the representation via self-dealing transactions.

Facts:

Ms. Ackerman, an elderly woman with substantial assets in a trust, suffered from cognitive impairment and dementia, though her capacity fluctuated.
Her son, Dr. Ackerman, retained the respondent attorneys (the Szymkowiczes) to challenge the trust and remove the trustee so he could access specific properties.
The Szymkowiczes eventually undertook joint representation of both Dr. Ackerman and Ms. Ackerman to revoke the trust entirely, despite the trust being designed to support Ms. Ackerman's care.
Ms. Ackerman later retained separate counsel (respondents Silverman and King), but Dr. Ackerman paid their fees and directed the litigation using a Power of Attorney (POA).
While represented by these attorneys, Ms. Ackerman executed documents, drafted or reviewed by the respondents, assigning valuable real estate to Dr. Ackerman for nominal consideration ($1).
Dr. Ackerman had previously filed a guardianship petition asserting Ms. Ackerman was incompetent, yet the attorneys relied on his POA to facilitate transactions benefiting him.
The attorneys did not obtain informed consent regarding conflicts of interest, operating under the belief that the mother and son shared a common goal of family peace.

Procedural Posture:

Bar Counsel brought disciplinary charges against the four respondent attorneys.
The Hearing Committee conducted a twelve-day hearing and found no violations of the conflict of interest rules, citing the clients' shared goals.
The Board on Professional Responsibility accepted the Hearing Committee's findings and recommended dismissing the conflict charges.
Bar Counsel filed exceptions to the Board's report with the District of Columbia Court of Appeals.

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Issue:

Do attorneys violate professional conduct rules regarding conflicts of interest when they represent both a mother with diminished capacity and her son (or take instructions from the son) in matters involving the transfer of the mother's assets to the son, without obtaining informed consent regarding the potential adverse interests?

Opinions:

Majority - Per Curiam

Yes, attorneys violate conflict of interest rules when they fail to obtain informed consent in situations where an objective observer would identify concrete risks of adverse interests. The Court rejected the Board's conclusion that no conflict existed simply because the family members claimed their interests coincided. The Court reasoned that substantial risks existed because Dr. Ackerman was self-dealing (transferring assets to himself) while Ms. Ackerman needed those assets for her care, and her capacity was diminished. Furthermore, regarding respondents Silverman and King, the Court held that Rule 1.14 requires lawyers to maintain a normal client-lawyer relationship with a client of diminished capacity as far as reasonably possible. Attorneys cannot blindly rely on a Power of Attorney holder—especially one engaging in self-dealing—to waive conflicts or direct litigation that depletes the client's assets. The case was remanded to determine if informed consent was actually obtained.

Analysis:

This decision significantly tightens the requirements for representing multiple family members in estate planning, specifically when one client has diminished capacity. It clarifies that a 'harmony of interests' asserted by the parties is insufficient to bypass conflict of interest disclosures if an 'objective observer' would see a risk. The ruling explicitly links Rule 1.7 (Conflicts) with Rule 1.14 (Diminished Capacity), establishing that a Power of Attorney does not absolve an attorney of the duty to communicate directly with the client or to protect the client from the agent's self-dealing. This effectively imposes a higher duty of inquiry on lawyers when a surrogate decision-maker (like a son with a POA) attempts to transfer the principal's assets to themselves.

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